Monday, Apr 08 2013
• 10 a.m. (ET)

States And The Debate Over Abortion Rights

A handful of states from North Dakota to Alabama recently passed laws limiting abortion rights. But Washington State is considering requiring health insurers to cover the procedure. A look at states and the debate over abortion rights.

Guests

Marjorie Dannenfelser
president, Susan B. Anthony List

Sarah Kliff
health policy reporter, The Washington Post

Marcia Greenberger
founder and co-president of the National Women's Law Center.

Joan Biskupic
legal affairs editor for Reuters News. She has written biographies on Sandra Day O'Connor and Antonin Scalia.

Transcript

10:06:55

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Washington Post recently reported that states have passed more abortion regulations since 2000 that they did throughout the 1990s. And in the last five years, none of those laws have expanded access to abortion. Here to talk about state action on abortion and the future of Roe v. Wade: Marcia Greenberger of the National Women's Law Center, Marjorie Dannenfelser of the Susan B. Anthony List, Joan Biskupic of Reuters, and Sarah Kliff of The Washington Post.

10:07:38

MS. DIANE REHMI do invite you all to be part of the program. Give us a call, 800-433-8850. Send us your email to drshow@wamu.org. Follow us on Facebook, or send us a tweet. Good morning to all of you. Thank you for being here.

10:08:00

MS. MARCIA GREENBERGERGood morning.

10:08:01

MS. MARJORIE DANNENFELSERGood morning.

10:08:01

MS. JOAN BISKUPICGood morning.

10:08:01

MS. SARAH KLIFFGood morning.

10:08:01

REHMGood to see you all. Joan Biskupic, I'll start with you. It's been 40 years since Roe v. Wade. Where does the public stand now?

10:08:14

BISKUPICIt's so interesting that you stressed the 40 years because the country feels as divided today as it was several decades ago on the abortion issue. It was 40 years ago in January where the Supreme Court ruled that there was a fundamental right for a woman to end a pregnancy, and that decision made abortion legal nationwide. The reason you care about it today is there's this issue over did it pre-empt state action at the time, did it provide a rallying point, as Justice Ruth Bader Ginsburg has said, to the anti-abortion movement.

10:08:45

BISKUPICPeople were very divided about abortion in those early years, and even today, as recently as, you know, just a month ago, our polls showed that people are still very split about abortion. About 47 percent said that it should be legal in most or all cases, and about 42 percent said it should be illegal in most or all cases. But yet the country is living with that decision.

10:09:09

REHMYes.

10:09:10

BISKUPICThe country is living with it. It's just that you see these pockets of activity out there, and it comes into play when we have another politically charged, religiously influenced issue as same-sex marriage as we saw last month.

10:09:24

REHMSarah Kliff, give us the lay of the land. What are we seeing at state level?

10:09:32

KLIFFRight. The last two years have really been kind of a sea change in abortion policy. In 2011, we saw states pass 92 restrictions on abortion. That was the most that's ever been seen since the Guttmacher Institute started tracking this issue a few decades ago. And it really -- some of them were in response to the president's health care law which kind of brought the abortion debate front and center the issue of whether insurance plans should cover abortion. And you also saw Republicans take control of a lot of state houses where these laws are being passed rather than the federal level.

10:10:07

KLIFFSo the two of those factors combined together really seem to have energized state houses to take action in restricting abortion. And then you kind of saw a bit of a lull in 2012, state legislators tend to back away from abortion in election years. But now in 2013, you've seen some laws that are more aggressive than anything on the books, banning abortion as early as 12 weeks and then as early as six weeks in North Dakota. So 2013 is shaping up to be another year that could really change the landscape again on abortion policy.

10:10:45

REHMMarcia Greenberger, what's your reaction to these laws? To what extent do they actually restrict the ability of women to get an abortion?

10:11:01

GREENBERGERIf they hold up and can pass court scrutiny, which is a very big if because they are direct challenges to Roe v. Wade, they would have dramatic restrictive implications. They would shut down clinics statewide. In a number of states, they would ban abortion so early that it's -- often, it could be six weeks and before a woman even knows she's pregnant.

10:11:35

GREENBERGERThere are -- they really would, through a combination of laws and approaches, make abortion -- if these were adopted in each state nationwide, it would mean the end of the availability of abortion, except possibly in the cases of rape and incest. But that's not an exception in all of these laws. And also, truly, if the life of the mother was at stake, that's -- and very narrow exceptions.

10:12:14

REHMMarjorie Dannenfelser, why do you think the pro-life movement has had such success at state level?

10:12:26

DANNENFELSERWell, I think within the context of the year since Roe, since we're talking about 40 years, what happened during that -- in that decision was the striking of every state law that restricted abortion. And so it created a simmering movement right away. Blackman didn't even predict it. He thought maybe it was going to be a problem. Berger said, yes, this is going to be a huge problem, and, in fact, it was because consensus measures were not -- were also struck down.

10:12:55

DANNENFELSERSo over this 40 years, there has been quite a number of arguments about, are there stages in pregnancy where there should be a restriction? Thirty-nine bills have actually been passed recently that do restrict at some point. There are also restrictions of taxpayer funding of abortion and all that. But what happened during that time?

10:13:14

DANNENFELSERAnd I think we're seeing now -- and it's something that I think is a good point of conversation here -- is that the sonograms and the being able to view the unborn child has created a positive thing for the pro-life movement and has created a difficulty for the pro-choice movement. So now it's both and rather than either/or. And coming to some consensus will create more civility when we talk about the abortion issue from here on out. I think it's a good thing that these things are happening.

10:13:42

REHMMarjorie Dannenfelser, she is president of the Susan B. Anthony List. The organization helps select candidates, pursues policies that will reduce and ultimately end abortion. Marcia Greenberger, she's co-president of the National Women's Law Center. The center works to protect access to abortion services and abortion rights.

10:14:14

REHMJoan Biskupic, she is legal affairs editor for Reuters. She has written biographies of Sandra Day O'Connor, Antonin Scalia. And Sarah Kliff, she's health policy reporter for The Washington Post. We will open the phones in just a few moments. Do join us, 800-433-8850. I look forward to hearing from you. Marjorie, is there any divide within the pro-life movement about just how aggressive states should be?

10:14:59

DANNENFELSERWell, it's interesting you should ask that because I think right now, there is particular heightened discussion about that. What I have found is that the biggest demographic that is out there that has turned more pro-life now are youth. That's the 18 to 34. Fifty-nine percent say it should be legal -- illegal in most or all cases. That tends to the group because that's the nature of youth, I think, to be a whole lot stronger on personhood or heartbeat bills, which is about six weeks or so.

10:15:34

DANNENFELSERThat's the group that really seems to congeal around the earlier ones. Our organization has generally taken an approach where we want to pass the laws that can quickly pass now. And so we have promoted eliminating taxpayer funding of abortion, restricting abortion after the point that the child feels pain, sex-selection abortions, things like that that have such an overwhelming consensus. That's where we begin. But we certainly, of course, embrace the -- what the young people are doing right now as well.

10:16:08

REHMSarah, tell us about Kansas and what they're about to do.

10:16:14

KLIFFSo Kansas just this week passed legislation that would define personhood as beginning at fertilization and what -- that looks similar to other laws that states have considered in recent years. There was a very big debate about this in Mississippi a few years ago whether they should rework their constitution to define personhood as beginning at conception. And the Kansas law is a bit different. This isn't an amendment to its constitution. So the effects of it are unlikely to be as sweeping as that Mississippi law.

10:16:53

KLIFFBut it certainly makes, you know, a statement and is arguably -- although I'd love to hear other folks on this, arguably the most success the personhood movement is having right now if they -- if this legislation is signed by Gov. Brownback, which is expected he will sign it. It will be the first time, from what I understand, that a state has passed one of these laws declaring personhood as beginning at conception.

10:17:19

REHMJoan Biskupic.

10:17:21

BISKUPICWell, it's interesting. Let me just tell you what the law is right now with the Supreme Court, both with the Roe v. Wade decision 40 years ago and then most strikingly with the Casey decision in 1992. The Supreme Court has said that abortion can be only, in the most minimal ways, regulated before the fetus reaches viability, and that's 22 to 24 weeks, essentially 20 weeks -- I mean, you know, it's a standard that, because of evolving medicine, you know, might be a little different.

10:17:52

BISKUPICBut we're talking as much as 20 weeks. We're not talking six weeks. We're not talking at fertilization. So the measure that Sarah just referred to and the earlier measures from North Dakota and other states are real affront to where the Supreme Court has been at in terms of the viability standard. If these were to be enforced and then challenged and survive scrutiny in lower courts, it would really tee it up for the Supreme Court.

10:18:19

BISKUPICI, frankly, would be shocked if the Supreme Court would uphold these measures that say that once you can detect any kind of fetal heartbeat or, you know, frankly, fertilization that Sarah was just referring to, that they would stand given where the Supreme Court has been.

10:18:33

REHMJoan Biskupic, she is legal affairs editor for Reuters. Short break here. When we come back, we'll talk about North Dakota, what's going on there, and take your calls. Stay with us.

10:20:05

REHMAnd we're talking in this hour about various state laws that have been enacted across the country, restricting or indeed establishing that life begins at conception thereby curtailing the rights of women to seek abortion. Here with me: Sarah Kliff of The Washington Post, Joan Biskupic of Reuters, Marjorie Dannenfelser, president of the Susan B. Anthony List and Marcia Greenberger, co-president of the National Women's Law Center.

10:20:50

REHMSarah, talk about what's happening in North Dakota. They have one abortion clinic in the state. I know you talked with the director. How concerned is she?

10:21:05

KLIFFShe -- you know, it's an interesting mix. So what North Dakota passed a few weeks ago was a set of three laws. One of them limits abortion after -- outlaws abortions after a heartbeat can be detected, which they estimate is six weeks. There's another law that also requires an abortion clinic to have admitting privileges at a local hospital and a third law that outlaws gender-selective abortions.

10:21:31

KLIFFThe restriction at six weeks has gotten the most attention because it is the most restrictive abortion ban in the country at this point. But the director of the one clinic in North Dakota is actually more worried about the law with -- regarding admitting privileges at hospitals. You know, as Marcia was saying earlier, the clinic director there expects that the six-week law is not going to upheld by the quotes -- by the courts, excuse me, that they are going to see this as a violation of Roe and not allow that cut to come into effect.

10:22:03

KLIFFThe law about admitting privileges, that could end up standing, and if there -- there's only two hospitals in Fargo, N.D. where they're located. They're worried if no hospital there gives them admitting privileges that they're not going to be able to perform abortions.

10:22:18

REHMBecause -- explain that to me. Some doctors actually fly in to perform abortions and then fly out again.

10:22:28

KLIFFRight. At the Red River Women's Clinic in Fargo, N.D., they have three doctors, and none of them live in North Dakota. They all fly in to perform abortions there. And so she's worried that these hospitals are not going to give admitting privileges to doctors that don't reside in the state. And that -- that essentially will be a roundabout way to close her clinic.

10:22:52

REHMMarcia, how likely is that these various laws would stand up in court and most especially the Supreme Court?

10:23:07

GREENBERGERWell, I don't think that these extreme laws will stand up in the court as it is currently constituted. Of course, for a number of years until the Obama administration, there was a determined effort to put justices on the Supreme Court who had a record of opposing Roe v. Wade. And that became a very important selection criteria. When Roe v. Wade was decided, it was decided by a vote of 7-2. That was a strong consensus.

10:23:41

GREENBERGERAnd the underlying purpose of the reason that it was viewed as a fundamental constitutional right for women is because their health, their lives is viewed as the ultimate personal decision and life-altering effect for women. Many of these laws have no protection for a woman's health. Most of them don't. They do not take into account any of the practical real-life circumstances that women have to face. And so they run square up against the basic point of protecting women's health that was the underpinning of Roe v. Wade.

10:24:26

GREENBERGERAnd one other very super-quick point about these personhood amendments because they talk about life beginning at conception, that, of course, rules out abortion certainly with respect to rape and incest, too, in the most of those cases, but -- let alone the health of the woman, but also, they take into their sweep contraception.

10:24:52

GREENBERGERAnd for many years, people thought, well, the compromise was there may be different views on abortion. But at least we should be able to all get behind contraception. Now, there are attacks on contraception, and these personhood amendments would make illegal many common forms of contraception, too.

10:25:13

REHMMarjorie Dannenfelser, do you see it that way?

10:25:17

DANNENFELSERWell, I don't see it Roe that way, of course, though I did when I was pro-choice. I think what changed was our -- was my understanding. And I think a general understanding of Roe is coming to light now. And that is it's -- the country has moved to a both and in terms of the woman and the child not either or. And I think that is a huge shift among youth.

10:25:40

DANNENFELSERIt's a shift among women. Gallup calls pro-life the new norm. And it's because of that recognition. Some of these extreme cases going on now where clinic regulations are not enforced, like in Pennsylvania with Kermit Gosnell, who's under trial for murder because of the delivery and then the just brutal execution of children. Now, that was circumventing the law.

10:26:07

DANNENFELSERBut the point of bringing that up is that more and more, everyone is -- the country is seeing that thing that we're talking about as another human being. So then we talk about two sets of rights, two sets of needs that we have to address. The -- to address Marcia's point, however, on the -- on contraception, you don't -- contraception is before the baby. So, I mean, it is just a rule of common sense that you can't have an abortion if you don't have a child, so...

10:26:44

REHMSo you don't see any of these restrictions leading to, perhaps, a state going even further?

10:26:54

DANNENFELSERNot at all. I mean, I know where we are on that issue -- on the issue of contraception. There is not a momentum in this country to address that. But there is tremendous momentum to come to some consensus on what we all believe is a civil society should do for women and unborn children. We have it for that in abortion.

10:27:14

REHMSo you believe that Roe v. Wade leaned too far in favor of the rights of women and not taking into account sufficiently?

10:27:28

DANNENFELSERI think even further. I think it was only the doctors' medical judgment. I mean, several legal scholars have said it's almost that the woman was sort of a B player in this because it was so centered on the physician and his judgment about medical -- what medical -- what was good practice that -- and it was very arbitrary. If you've read through, which you guys have 'cause you're legal scholars, have read through how the decision was made, it was very arbitrary.

10:27:53

DANNENFELSERFirst, it was going to be only the first trimester. And then it extended into the second trimester that there could be no restrictions. And then after the third trimester only for the life and health of the mother, which is also defined as psychological health and emotional health, so as a family, all those things. So, yes, I clearly disagree with that as the country does.

10:28:12

REHMAnd, Joan Biskupic, Justice Ginsburg, you referred to earlier, made some comments last month to the effect that, perhaps, Roe v. Wade had come too soon and gone too far. Expand on that.

10:28:34

BISKUPICI will. And I just want to clarify two things. And Justice Ginsburg has made her comments dating back decades. But they need to be framed in a couple of caveats. First of all, Roe v. Wade, as Marjorie accurately said, did have an emphasis more on the medical side. It was written by Harry Blackmun, an appointee of Richard Nixon, a Republican. But he had been general counsel of the Mayo Clinic and he came to it with that sensibility.

10:28:58

BISKUPICSubsequent abortion decisions, however, have very much put the emphasis on the woman's right, including Casey decision from 1992 that I referred to. And subsequent decisions have talked much more about the woman's right. And Justice Sandra Day O'Connor, who left the court in January 2006, who was critical in terms of re-interpreting and clarifying abortion law by the Supreme Court, again stressed the burden on the woman.

10:29:25

BISKUPICSo I just wanted to get that out that there in terms of where the court is at. Justice Ruth Bader Ginsburg, very active woman's rights advocate, that's how she made her name nationally as someone who had founded the American Civil Liberties Women's Rights Project, very much of an abortion right supporter, but coming at it in terms of equal rights between men and women.

10:29:44

BISKUPICAnd what she believed and said early on was that Roe became an unnecessary flashpoint for the other side, because it did come at a time when state legislatures were moving toward more permissive abortion laws. That's what she thought. Now, she -- let me just say this, though, in terms of where she's at because of how her comments have been...

10:30:04

REHMRemarks.

10:30:05

BISKUPIC...remarks have been used in the same-sex marriage context. She was never against abortion rights. She was against -- she had sharp criticism for the rationale that the court majority had used and would have preferred a less stunning legal rationale, maybe more in terms of equal protection, the equal protection guarantee for women rather than this due process, privacy rights. And then also, again, she felt that it had, in some ways, pre-empted state action.

10:30:32

BISKUPICHer remarks have been brought to the forefront in the same-sex marriage context because people have felt that she could be exhibit A for it. Maybe the court shouldn't move so fast on same-sex marriage. I don't think the two issues can be equated in the same way, although they could be very defining for the Supreme Court as a judicial institution.

10:30:50

BISKUPICBut I think given the kinds of passions that you're even hearing here today, 40 years after Roe, abortion is a much tougher emotional, religious flashpoint, I believe, than same-sex marriage in some ways. And we've already seen polls showing so much more acceptance of same-sex unions and marriage in a way that we still don't see on some of the abortion things. So I don't think that Ruth Bader Ginsburg herself would believe that they can be equated in terms of the public sentiment that way.

10:31:21

GREENBERGERI might -- is it possible for me to just say something very quickly about the polling? Because I think there have been a number of comments assuming that there is very, very narrow division. And, in fact, as is true with many polls, it depends on how the question is asked. So if the question is asked, would you want to see Roe v. Wade overturned, there's a very strong majority in -- opposed to seeing Roe v. Wade overturned. People will sometimes answer the question depending on how they feel personally about their own decision.

10:31:57

GREENBERGERBut if the question is very clear about do you want to make the law prevent other women from making this personal decision themselves, then the answer is very different in the polls. And as to young people, we are seeing a lot of energy because there was a quiet assumption on the part of many young women that this was a right that was secure, that was one -- that was -- the Supreme Court had decided 40 years ago.

10:32:30

GREENBERGERMy own organization, the National Women's Law Center, has a new project, an online project called This Is Personal, and speaks to young women. We are overwhelmed by the response. So we are beginning to see a political movement that's very strong, both with respect to abortion and contraception.

10:32:52

REHMMarcia Greenberger, co-president of the National Women's Law Center. And you're listening to "The Diane Rehm Show." Sarah, before we go to the phones, how likely is it that the Supreme Court will take up Roe again in the near or distant future?

10:33:19

KLIFFWell, if I had a crystal ball, I can answer that a little more accurately. But from what I understand, there are a lot of people on both sides of the debate that do expect an abortion decision at the Supreme Court because of this wave of laws we've seen. I spoke to Planned Parenthood President Cecile Richards, who says, you know, yes, I expect one of these to make its way up to the Supreme Court.

10:33:43

KLIFFAnd you see some from the other side. North Dakota's governor, when he signed the law that bans abortions at six weeks there, he said he recognized, you know, it might not survive a challenge, but he would like to challenge Roe, a standing law. And so you see on both sides, you know, they don't agree on the issue, but there seems to be some consensus that this is likely heading towards a Supreme Court case, although I'd also defer to Joan, who knows the court better than I do.

10:34:13

BISKUPICWell, it's really tricky. You know, Marcia was talking about the court as it was constituted under Ronald Reagan and how that was a litmus test for him. It obviously wasn't a litmus test for Richard Nixon since Richard Nixon's appointee supported the decision. You know, obviously, the two new Obama appointees would vote for Roe.

10:34:29

BISKUPICAnd, right now, Anthony Kennedy, our key swing vote on this, has made clear that he does support Roe v. Wade, but he's 76. He'll turn 77 in July. Ruth Bader Ginsburg just turned 80. Who knows what's going to happen in the next couple of years? But I have always believed that there wasn't a legal or, frankly, political appetite to overturn Roe v. Wade. But, you know...

10:34:54

REHMYou never know.

10:34:54

BISKUPIC...you never know, and things change fast here.

10:34:57

REHMAll right. Marjorie, what about the Affordable Care Act? How are states using that to limit access to abortion?

10:35:09

DANNENFELSERWell, of course, we had that whole debate in 2010 over whether it would require federal funding of abortion or not. There was no statute put into the bill. And so there was an executive order, which doesn't, of course, have the weight of statute. And states get that. And I believe -- correct me if I'm wrong, Marcia -- I believe that probably abortion rights organizations saw that as probably a open door, potentially, for it to be able to fund abortion since it's considered a health care right.

10:35:42

DANNENFELSERAnd it certainly is happening right now in Washington state. Washington State is requiring that the exchanges there fund full abortion funding. So we're going back and saying, gee, I hate to be a mother and say, I told you so. However, we did say, if you didn't put it in the bill, it would be a problem. Twenty-one states have said, in their state exchanges, that they will not fund abortion. But now they're having to re-up those laws because now they're needing to apply them to the federal exchanges as they move in. So that's where we are with that.

10:36:11

REHMSarah, the Virginia general assembly took action.

10:36:16

KLIFFYeah. So you've seen, you know, as Marjorie mentioned, a lot of states since the Affordable Care Act have taken up this kind of laws with great success. As you mentioned, 21 states have passed laws like this. Virginia is the most recent, where it is going to bar any of the plans sold on the exchange, these new marketplaces that will launch next year in 2014.

10:36:37

KLIFFSo the plan sold there, and this is the only place that taxpayers who receive subsidies can go to buy insurance. The plan sold there will not cover abortion, and that's kind of -- it's been a new law that you've seen showing up across the country ever since the Affordable Care Act became law.

10:36:57

GREENBERGERJust by way of clarification, before the Affordable Care Act, the basic principle had been most insurance companies did cover abortion. Most private insurance companies simply had general provisions that covered medical procedures according to physicians' judgments, and abortion wasn't excluded. So what we're talking about here is changing circumstances.

10:37:21

REHMMarcia Greenberger, co-president of the National Women's Law Center. And we're going to take a short break. When we come back, it's your turn to be part of the conversation. Stay with us.

10:40:05

REHMAnd we're ready to open the phones as we discuss what states are doing on the issue of abortion. Let's go to Sharon in South Bend, Ind. Good morning.

10:40:20

SHARONHi there. This is more of a comment and a little story than a question. But I come from the days -- I'm 70 -- of the storefront abortions. Women were dying. They had no place to go but -- for illegal abortions. And my parents, who were fundamentalist Christians, sent me out of the country for an abortion. I later learned -- when we started -- the girls in my church started talking that others were doing the same thing. I feel that our country is going backwards rather than forwards.

10:40:56

SHARONAnd I see young women again dying from illegal abortions because they will not be able to afford to leave the country to have one. And that's really my comment. And I did want to say one more thing. I saw a woman on public television maybe 10 years ago, a religious woman, saying -- she said that once they took care of abortion, they were going to go after contraception.

10:41:18

REHMAll right. Thanks for your call. I wonder how you react to that, Marjorie, in terms of the number of women who we know died of back-alley abortions and those who had to leave the state. What do you say to them?

10:41:43

DANNENFELSERWell, two things. One is just the obvious, that it is an unbearable tragedy. There's a crisis. There is a moment. I mean, this is why I was very pro-choice. I would've had one in a minute without even worrying about what might be going on to that thing that we're talking about. At that point in time, there were not be over 3,000 pregnancy care centers in the country that there are now. And yet, there are now because there is a -- really, if you want to just be Pollyannaish, just be real.

10:42:17

DANNENFELSERThere is really love at the center of this movement. It is love for the mother and the child. And there is a moment when she has great need. And there is a moment for people to speak for what this thing is that we've talking about that we keep looking at on sonograms or see, you know, pictured in other - there -- it is a moment to serve both. And that is actually a returning. It's not -- if we're truly going backward, then we're returning to our feminist roots, the suffrages who truly believed that you don't treat children as property to be disposed of in the way that women were treated as property.

10:42:52

REHMMarcia Greenberger.

10:42:54

GREENBERGERWell, you know, I'm struck by several things. First of all, the emphasis in the courts, the underlying principle for Roe v. Wade and abortion rights is women's health and their own ability to protect their own health, their own lives. In this country, we are 47th in maternal mortality, 47th, an unacceptable figure.

10:43:20

GREENBERGERNone of these restrictions have exceptions to protect women's health, including their future fertility. To me, one of the cruelest things of all in the case of a woman who wants a pregnancy, but that is a deeply, deeply flawed pregnancy, and they would restrict her ability to get -- to terminate it at the cost of her ability to have future children.

10:43:48

REHMAll right. Let's go...

10:43:49

GREENBERGERAnd if I could also, Diane, just say, the laws being passed right now also would make IUDs illegal because many now say they operate after fertility.

10:44:04

REHMAll right. To Chris in St. Joseph, Mich. Good morning. You're on the air.

10:44:11

CHRISGood morning. Thank you. There is -- the question that I had is the thought of this issue eventually reached the Supreme Court again. Currently, there are parties that are asking the Supreme Court to redefine marriage as it had been know for thousands of years and certainly as it was known at the time of Roe v. Wade.

10:44:33

CHRISWhat would be to stop that same courts from redefining a person different than it has in, for instance, Casey or Roe, you know, approximately 40 years ago, and saying, hey, we're going to spare this out in the same way that Lawrence v. Texas basically abandoned the reasoning of Bowers v. Hardwick?

10:44:56

REHMAll right. Joan.

10:44:58

BISKUPICYou know, there are two separate issues, of course, but you're right that they both play into sort of the politically charged, you know, religiously influenced issues that people feel a lot at stake in and that much is happening now in a very dramatic way in the political form. I think that a 40-year decision, Roe v. Wade, would be -- there would be a lot of arguments to keep it where it's at just because it's been 40 years.

10:45:27

BISKUPICNow, the two other decisions that the caller referred to in terms of rights for gay men and lesbians, they weren't around as long, and there were -- they were very divisive among the justices. They were 5-4 decisions. They weren't the 7-to-2. It's -- it just came in a different way. I'll just address the sodomy one that he referred to, Lawrence v. Texas, which the -- in 2003, the court reversed earlier decisions that said that states could outlaw intimate relations between adults, consenting adults.

10:46:04

BISKUPICAgain, it's -- even though they are both really hot social issues, they come at a -- they come to people in a different way. And the awareness that the justices have -- themselves have observed and that the nation has observed in terms of the rights of gay men and lesbians is much different today. And I think that's what leads to that kind of change. I also would say, though, having sat through those oral arguments in the same-sex marriage cases at the end of March, I don't see them taking a dramatic step in those.

10:46:32

BISKUPICI think that what we're going to likely see is not a nationwide right to same-sex marriage at this time. I do think the justices will follow what lower courts have done though and said, once a state does allow same-sex marriage, the federal government has to give those people the same rights that the federal government gives heterosexual couples.

10:46:49

REHMTo Durham, N.C. Good morning, Derrick. (sp?)

10:46:54

DERRICKGood morning. This is a wonderful program. Thanks, Diane, for having it. Actually, I have to say hello to Marjorie. We grew up together, but we're on polar opposites of this issue. And I have a quick question.

10:47:05

DANNENFELSERWho did you say you are?

10:47:08

DANNENFELSERDon't tell any stories.

10:47:09

DERRICKWe graduated together.

10:47:11

DANNENFELSERI didn't hear your name.

10:47:11

REHMAll right. His name is Derrick. Let's move on.

10:47:15

DERRICKAnyway, I have a quick comment and a question. And, you know, sometimes the dire use of hyperbole in the way this issue is constructed and a lot of the times in the way that they was talking about what the polls are saying go in to believe that there's been kind of ginned up. And so I'm wanting to know, what is the pro-life's ultimate -- pro-life's people's ultimate goal?

10:47:40

DERRICKBecause why do they need to define life and to infringe on somebody else's personal choice and at the same time attack Planned Parenthood and all the other institutions that -- Planned Parenthood actually not only helps women and sexual health but helps men. And so many of the children that may be born in an unwanted situation, if they wind up as part of either the penal system or remain in poverty, that's really not a pro-life view. These are people who wind up suffering long term.

10:48:11

REHMThanks for your call.

10:48:14

DANNENFELSERWell, Derrick, I think if we were talking about chocolate or vanilla ice cream, none of us would be having this conversation right now. The choice involves a choice between two human beings. And we say don't -- let's don't make a choice between the two. Let's embrace the two. Let's make room for those. Even if we -- even if some people decide that a person's life is not worth living, the child usually themselves is pretty grateful for their life. I've got one of those, and she changed all of our lives.

10:48:40

DANNENFELSERAnd many people would've said -- made a different choice of not even knowing. So I think it's a dangerous place to be. It was made by Margaret Sanger, the founder of Planned Parenthood, to say that there are people who are human weeds. I don't think we -- any of us want to be in a situation like that. But I think the specific question was about the goal.

10:48:58

DANNENFELSERI would say what I wake up thinking about and driving my motivation all the time is trying to help forge a consensus and make sure that that consensus is enacted into law that reflects where we are right now. Actually, the consensus is already there. Sixty, 70, 80 percent issues on taxpayer funding of abortion, late-term -- or abortions after viability, a whole host of -- and sex-selective abortions are just so many that are -- that we have a consensus on.

10:49:31

DANNENFELSERAnd if we could come to some consensus, then perhaps the error of Roe being so dramatic could be partially corrected. We could start to move gradually toward it rather than having really no consensus in the law. The marches will continue, you know, until we have gotten to some place where maybe neither side is absolutely happy but most people feel we've gotten to an important accommodation.

10:49:58

REHMMarcia.

10:49:59

GREENBERGERYeah. I'm a little confused because I do think this idea of driving towards consensus -- I don't see a consensus when the right of a woman to be able to terminate a pregnancy is being so frontally challenged as it is right now. And, Marjorie, as I understand it, those are bills and laws that you support. So I want to go back again and say, with respect to women's health, they're -- and criminalizing women, which is a part of what comes with something like these personhood amendments.

10:50:46

GREENBERGERDoctors could be put in jail for performing abortions, women put in jail for what is viewed as killing now a person. Those are real-life laws that are on the books in states right now that haven't been enforced because of Roe. We even have a legislator in New Mexico who has introduced a bill that would criminalize a woman, who was a victim of rape, terminating her pregnancy because it would interfere with the evidence of the rape. And that is an actual bill that has been introduced.

10:51:27

GREENBERGERSo the idea of finding consensus when these are fundamental attacks regardless of women's health, regardless of the viability of the fetus, no abortion after six weeks, closing down clinics like Planned Parenthood that are so safe, and provide health -- basic health care service for women. These are attacking where we have had a consensus in the country.

10:51:53

REHMAll right. Here's an email from Lisa, who says, "My mother was a nurse in the 1950s. She said she never saw a single woman who came in with injuries from back-alley abortions survive. The older nurses would often say the poor women got what they deserved, but rich women were allowed procedures in the hospital that ended pregnancies.

10:52:29

REHM"But being pregnant was never mentioned. They were said to deserve a second chance -- total hypocrisy. This is more an issue of thousands of women dying because outlawing abortions doesn't stop abortions from being done." Marjorie.

10:52:55

DANNENFELSERAgain, that's a different time. There is a lot of mercy at the heart of this movement and a lot of love. People who have changed their minds, people who understand the suffering of women and also understand that there is new person to be loved and protected and perhaps allow another family to take care of them. At this point in time you cannot get -- unless you are very wealthy, you cannot adopt a child in the face of all sorts of infertility. So the poverty that we as a nation have, all of these children just go down the sink instead of having a loving family, is something to be mourned.

10:53:31

10:53:41

BRANDYGood morning, Diane. A long-time listener and big-time fan.

10:53:46

REHMThank you.

10:53:46

BRANDYMy question to the panel is -- I'm calling from Texas, which is a low-tech, low-service state. When we go and talk about pro-life and outlawing all abortions, we're talking about innovating a system that's already flooded with children -- 'cause I'm also a foster parent. These children are going to be on welfare. They're going to be in foster care.

10:54:06

BRANDYAnd I've seen the damage that foster care does to children. And I am working on that. I'm going to be adopting these children soon. But not all of these children end up like that. So what is their way of doing this? What is their -- how are they going to fix that in places like Texas where we don't want to spend money to help these children on welfare?

10:54:27

REHMSarah, first talk about the laws in Texas.

10:54:32

KLIFFRight. Texas has really proven to be one of the most aggressive states in limiting Planned Parenthood spending. We saw a debate at the national level that really bubbled up in 2011 in a way it hadn't ever before over whether the federal government should spend the money on Planned Parenthood. And I would add the federal government does not fund abortions of Planned Parenthood.

10:54:50

KLIFFBut they do fund other services, such as cervical cancer screenings or breast exams, things such as that. And there was, you know, a debate about, you know, while that funding isn't going to abortion, should the federal government be sending money for other services at what is the country's largest abortion provider?

10:55:07

KLIFFAnd, you know, that law -- laws to defund Planned Parenthood, they didn't pass here in Washington. Those wouldn't be something we'd expect President Obama to sign. But in state legislatures, states have decided, you know, we don't want to fund Planned Parenthood anymore. And Texas passed a law recently -- I believe it was last year or the year before -- outlawing funding for -- funding through its family planning programs at abortion providers.

10:55:32

REHMAll right. So, Marjorie, talk about her primary question. Who's going to take care of these presumably unwanted, unparented children?

10:55:46

DANNENFELSERWell, I think, let's back up a little bit. The way our country and the women of this country and good people have responded to the most vulnerable in our society has not been -- it's not typical of -- reflective of her comments. I think we're a lot more generous nation. I think most people don't say those sorts of things out loud. I think it's a very difficult place to put yourself in to say that there are people worthy and not worthy and -- of...

10:56:13

REHMI didn't hear that but...

10:56:14

10:56:17

REHMShe says...

10:56:18

DANNENFELSERShe might not be same -- she might see that there's another person in a vulnerable position that she would like to help because she is obviously generous in her own life in terms of helping foster children. But those foster children in every household are valuable, are -- have rights that should be acknowledged.

10:56:34

REHMBut how many are taken into homes and cared for? And how many end up in institutions?

10:56:44

DANNENFELSERIf pregnancy centers were anywhere close to getting the support that Planned Parenthood does, which is $1 million a day from the taxpayer, then we'd be in a much better situation to have adoptions where this tragedy wouldn't continue to occur.

10:56:59

REHMSarah, in the absence of Supreme Court ruling, are we likely to see more states enacting more restrictive laws?

10:57:10

KLIFFI think of the past few years, the experience we've seen, that yes, we'll definitely see more restrictions.

10:57:17

REHMSarah Kliff of The Washington Post, Joan Biskupic of Reuters, Marjorie Dannenfelser of the Susan B. Anthony List, Marcia Greenberger of the National Women's Law Center, thank you all so much.

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